CN02 - ECJ clarifies the protection provided by the non bis in idem principle

On 22 March 2022, the European Court of Justice ("ECJ") delivered two judgments clarifying the scope of protection of the non bis in idem (double jeopardy) principle which provides that a (natural or legal) person may only be sanctioned once for a single unlawful course of conduct where the sanctions are designed to protect the same legal interest. 

Key takeaways

• The non bis in idem principle does not protect an undertaking from dual proceedings where there are distinct protected legal interests pursued in each proceeding.
• Dual proceedings are only permissible where there are clear and precise rules that make it possible to predict (i) which acts or omissions are liable to be subject to duplicative proceedings, and (ii) that there will be coordination between two competent authorities.
• The duplicative proceedings must be conducted within a proximate timeframe and the overall penalties imposed must correspond to the seriousness of the offences committed.

The Austrian Supreme Court and the Belgian Court of Appeal referred questions to the ECJ in the context of appeals based on the non bis in idem principle for duplicative proceedings. On 22 March 2022, the ECJ delivered judgment in bpost (C-117/20) and Nordzucker and Others (C-151/20) which clarified the application of non bis in idem in the context of duplicative proceedings by multiple national competition authorities ("NCAs") and by an NCA and a national sectoral regulator.

Nordzucker

Two of the major producers of sugar in Germany, Nordzucker and Südzucker, agreed not to compete with each other in their respective traditional core sales areas. Südzucker's Austrian subsidiary, Agrana, noticed a delivery of sugar coming from Nordzucker's Slovak subsidiary. Südzucker subsequently informed Nordzucker of the delivery in a telephone conversation and referred to possible consequences for the German sugar market.

In 2014, the German NCA fined Nordzucker and Südzucker for participating in an anti-competitive agreement. The Austrian NCA subsequently filed an application before the competent Austrian court, seeking a declaration that Nordzucker had infringed competition law and to impose fines on Südzucker. The Austrian court of first instance ruled that the agreement concluded during the telephone conversation had already been subject to a penalty imposed by another NCA and therefore a new penalty would infringe the principle of non bis in idem. On appeal, the Austrian Supreme Court referred a question to the ECJ seeking guidance on whether the telephone conversation could be taken into account, even though it was expressly referred to in the German NCA's infringement decision. 

The ECJ ruled that the non bis in idem principle did not prevent proceedings from being brought against the same undertaking by the NCA of a different Member State on the basis that the proceedings pursue complementary aims relating to different aspects of the same unlawful conduct of issue. The second NCA's decision must therefore not be based on a finding of an anticompetitive object or effect in the territory of the first Member State. In this context, the court needs to consider whether the legal assessments made by the German NCA related exclusively to the German sugar market or also included the Austrian sugar market. 

Bpost

Bpost, the historical provider of postal services in Belgium, was successively fined by two Belgian authorities for its rebate system. The national sectoral regulator for postal services concluded that the rebate system applied by bpost in 2010 discriminated against some of bpost’s clients. Following an appeal (including a request to the ECJ for a preliminary ruling), the postal regulator's decision was annulled on the basis that the situation did not amount to discrimination under the legislation relating to the postal sector. 

Subsequently, bpost was fined by the Belgian NCA for abusing its dominant position by the application of the same rebate system between January 2010 and July 2011. On appeal, bpost disputed the legality of that second set of proceedings, relying on the principle of non bis in idem.

The ECJ held that the protection against double jeopardy does not prevent an undertaking from duplication of proceedings provided two distinct general legal interests are being pursued, even if the proceedings are based on the same facts. However, there must be clear and precise rules that enable undertakings to predict (i) which acts or omissions are likely to be result in duplicative proceedings and (ii) that the competent authorities in each area will cooperate. In addition, the two sets of proceedings must be completed in a suitably coordinated manner within a reasonable time frame, and the aggregate penalties imposed must correspond to the seriousness of offences committed. Otherwise, the second public authority will infringe the principle of non bis in idem by instituting proceedings.

Comment

Previously, the non bis in idem principle has been applied differently depending on the field of EU law. In his Opinion, AG Bobek proposed a harmonised test of non bis in idem under Article 50 of the Charter on Fundamental Rights of the European Union which would require duplication of the offender, relevant facts and protected interest. While the ECJ rulings have harmonised the approach to non bis in idem across EU law, it has not adopted AG Bobek's suggestion.

With thanks to Jessica Bracker and Robbie Paratore of Ashurst for their contribution.